Blaming ADR

Heather Scheiwe Kulp, February 14th, 2012

When Mayanne Downs took office as President of The Florida Bar in June 2010, she stated that under her watch, a special committee would examine the decline in the number of jury trials and its impact on the judicial system, the public and lawyers. Especially in the face of drastic cuts to the judiciary’s budget, both at a state and federal level, this exploration seems timely. Getting a snapshot of why trends occur helps courts, the bar, and litigants consciously plan for what lies ahead.

The resulting report, however, speaks ominously of a threat to the traditional civil trial: alternative dispute resolution.

In Florida state courts’ fiscal year 1987/1988, 2,413 of 155,407 civil cases were disposed of through a traditional trial. In fiscal year 2009/2010, the number of cases was 401,463, with 879 being disposed of through a traditional trial. While the report focuses on the shrinking number and percentage of cases that went to trial (from 1.6% down to .2%), I want to focus on a different trend these numbers indicate.

Administratively, filing clerks, court clerks, and judges had to manage a docket increase of nearly 300% in 22 years. With funding to state courts being cut drastically around the country, these judicial employees likely had to manage this increase with fewer funds per case than were available in 1988. There was probably not a decrease in the number of case management calls, first hearings, or settlement conferences the judges conducted. Nor was there a decrease in the number of motions or amendments filed, for which the clerk and judge are responsible. So, the decrease in trials does not mean the judiciary has been working less or needs to put more effort into ensuring due process. Rather, the increase in caseload means the judiciary needs more assistance with managing the overwhelmed docket, especially as personnel face increased pressure to clear dockets with fewer dollars.

Enter ADR.

Studies indicate that ADR can, if used appropriately and early in a case, create greater efficiencies in the legal system. As expected, disposition can happen more quickly in mediation than in traditional trials. Also, litigants are often very satisfied with ADR, thus having a better perception of a judicial system that refers them to the process most appropriate for their money, time, and interest in fairness.

The fear is that ADR will take over the traditional court system, taking precious dollars away from the courts, reducing the skill of attorneys to litigate a case, jeopardizing people’s constitutional right to assert their claims in front of a judge, and reducing the number of verdicts that set precedent for later cases. Certainly, ADR can reduce the number of cases that go to trial and thus, the number of hours an attorney may bill for one case. Additionally, ADR processes may keep some important questions of law from entering public record. But the anxiety is misplaced.

First, not all cases are appropriate for ADR, including those cases in which important, first-impression rights are being asserted. Courts and attorneys can and should do a better job of screening cases before sending them to ADR processes that could result in agreements that are not in the best interest of the parties. But that is not the fault of ADR, but rather a call for the ADR community to better educate courts and attorneys about how to screen cases for appropriate dispute resolution referral. Indeed, a 2009 Multnomah County, Oregon, report similar to the Florida report indicates that the concern over the lost jury trial is less about increased referrals to ADR, which the report says is a good thing, and more about the appropriateness of an increase in bench trials as opposed to jury trials (see page 6 of this report). For most cases, the differences in outcome between ADR and a traditional trial are attributable to the process itself rather than the content of the dispute. Indeed, an overwhelming majority (97%) of attorneys surveyed in one study believed that the outcome of mediation in their case was fair.

Second, ADR saves litigants’ money at the same time it allows them to determine their own outcome; most litigants would not be able to afford a full trial, as the Florida report points out, even if they wanted to have one. Also, it can free up attorneys to represent more people, and since significant numbers of people go to court without an attorney, the bar is not likely to run out of cases, even if some are pro bono or lower cost. As a legal field, all players can focus more on providing greater access to justice for all litigants, improving the judicial system, and ensuring people’s disputes are managed and resolved justly, appropriately, and efficiently.